The proposed amendments would mean that a person standing trial could have their prior convictions and acquittals made admissible as evidence during criminal proceedings, so they can be presented before a jury, or to a magistrate or judge.

Royal Commission chief executive Philip Reed said the admissibility of tendency and coincidence evidence is especially important in child sexual abuse cases, especially when dealing with institutional abuse.

However, lawyers and civil libertarians are up in arms about the amendments – which would apply to all crimes, not just those of child abuse – as they could mean a person is unfairly prejudiced for their prior convictions. They are concerned jurors who are told of a person’s past crimes may infer guilt for the present allegations, rather than focusing on the evidence presented at trial.

Lawyers and many others feel that this would impinge on the presumption of innocence – that a person is to be presumed innocent until they are proven to be guilty of the specific accusations brought against them.

The tendency and coincidence rules

Currently, a person’s criminal history is not normally presented to a jury, and judge and magistrates are not permitted to take past offences into account when delivering a verdict on a defendant’s present charge, except in rare circumstances.

This safeguard ensures that a jury or a judicial official is not unduly swayed by a person’s past. The protections are contained in the ‘tendency’ and ‘coincidence rules’.

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

This essentially means that evidence of a previous offence can only be admitted if it is highly probative; for example, if the ‘modus operandi’ (or method used by the offender) was so similar to the allegations in the present case that the evidence is highly relevant.

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

The Royal Commission’s argument

The commission claims that if the only evidence of child sexual abuse is the complainant’s evidence, it is difficult for a jury to be satisfied beyond a reasonable doubt that the offence actually occurred.

It says that if other complainants or witnesses are able to provide evidence that the accused also sexually abused them as a child – which is considered to be tendency or coincidence evidence – then this will increase the likelihood of a guilty verdict.

The commission’s position seems to be that it is a good idea for a defendant to be found guilty even if the case against them for the present allegation is weak, so long as he or she committed a previous offence of that kind.

The draft bill

It proposes that a new section 92(2) be inserted to provide that section 91(1) “does not prevent the admission or use of a party’s conviction for an offence as tendency evidence or coincidence evidence.”

The bill also recommends that section 97 and 98 be amended to allow the admissibility of both tendency and coincidence evidence, even if the prosecution hasn’t given reasonable notice to the defence about producing it, or if the evidence is not significantly relevant to the facts.

“Tendency evidence or coincidence evidence about a party that is admissible under this part cannot be excluded under section 135 or 137 on the ground that it is unfairly prejudicial to the party.”

Schedule Two of the draft bill recommends that the distinction between tendency evidence and coincidence evidence be replaced with a single concept of propensity evidence.

This propensity rule would provide that evidence is admissible if:

“(a) any one or more of the following prove that the person has or had a propensity to act in a particular way or have a particular state of mind:

(i) the character or reputation of the person,

(ii) a tendency that the person has or had,

(iii) conduct of the person (including conduct of the same or a similar kind to conduct that is a fact in issue in the proceeding), or

(b) the occurrence of 2 or more events to prove that a person did a particular act, or had a particular state of mind, because of similarities in the events or the circumstances in which they occurred (or both)”

Arguments against the amendments

Australian Lawyers Alliance (ALA) spokesperson and barrister, Dr Andrew Morrison SC, warned against the proposed amendments late last month.

Morrison acknowledged that the Royal Commission is doing invaluable work, but said the proposed amendments “would seriously undermine the right to a fair trial in Australia”, adding that the changes could lead to more people being convicted of crimes they did not commit.

And as the reforms would apply to all crimes, the doctor highlighted the fact that the changes would undermine the right to “fundamental fair trial guarantees” for all defendants, not just those accused of child sex offences.

He pointed out that evidence of past crimes can be “misunderstood by juries as proving something that did not actually happen.”

The draft bill significantly lowers the threshold for the admissibility of evidence of past offences – as Dr Morrison notes, it only requires the evidence to be relevant. Of significant concern is the fact that the proposals seek to remove the rule that evidence must be excluded if it would lead to unfair prejudice.

Victoria Legal Aid submitted to the commission that tendency and coincidence evidence “is a powerful form of evidence which significantly increases convictions rates.” The service stated that any reductions in the thresholds of admitting such evidence will “lead to injustice and wrongful convictions.”

“While we fully support the Royal Commission and the invaluable work that it is doing, in this instance it has gone too far,” Dr Morrison concluded in the ALA statement. “Reforming evidence laws is outside of its terms of reference and the proposed bills present a serious risk to the Australian legal system.”

Authors

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.